Kalan and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs to refuse a prospective marriage visa to Mr Tamer Talipoglu, the sponsor of whom was Ms Kalan, an Australian citizen. The refusal was made under section 501(1) of the *Migration Act 1958* (Cth) on character grounds, specifically relating to Mr Talipoglu's conviction in Turkey for his involvement in an illegal human tissue explanting ring, described in public opinion as the "Organ Mafia". The Administrative Appeals Tribunal (the Tribunal) was required to consider the character test and the exercise of discretion under the Act, including whether it could look behind the conviction itself.

The primary legal issue before the Tribunal was whether Mr Talipoglu met the character requirements for the visa, and if not, whether there were sufficient compelling reasons to exercise discretion in his favour. This involved assessing the seriousness of his conviction, the risk of further offending, and balancing these against other considerations outlined in ministerial directions. The Tribunal had to determine the weight to be given to primary considerations, such as the protection of the Australian community from harm, and other considerations, including the impact on family members. A key aspect of the assessment was how to treat the conviction, particularly given the context provided by Ms Kalan regarding the nature of the criminal enterprise and her belief in Mr Talipoglu's lesser involvement.

The Tribunal reasoned that the conviction for mediating for kidney givers and buyers within a criminal enterprise involved in illegal human tissue explanting was a serious offence that weighed heavily against granting the visa. It noted that the criminal enterprise was international in scope and involved exploiting vulnerable individuals. While acknowledging the genuineness of the marriage and the potential impact on Ms Kalan, the Tribunal found that her adult sons were becoming independent, making it feasible for her to relocate to Turkey if she chose. The Tribunal also considered the expectations of the Australian community, concluding that a hypothetical member of the community, properly informed of the facts, would expect a visa not to be granted to someone convicted of such a serious offence who had no prior connection to Australia. The Tribunal found insufficient corroborative evidence to support the assertion that the conviction was solely due to discrimination against Mr Talipoglu's Alevi faith.

The Tribunal affirmed the decision to refuse the visa, finding that the primary consideration of protection of the Australian community weighed against granting the visa, and that this consideration was not outweighed by other factors.